Mrs N Jankowska v View Logistics — 2023

The claimant, a Polish national employed since 2016 as a sales/office manager, went on maternity leave on 12 April 2021. While still on leave she sought to return on reduced and flexible hours. She made a written flexible working request on 5 November 2021 to change her hours from 9 to 5 to 8 to 4, and then made a further request on 14 January 2022 to work five hours a day, three days a week from 1 February 2022. The tribunal found that a meeting took place, that the respondent discussed the request and the claimant's need for flexibility around her husband's shifts and childcare, and that the respondent then refused the request on 24 January 2022 because of ongoing structural changes and the need for consistency to meet customer requirements. A further discussion took place on 28 January 2022. The claimant did not appeal and later resigned by email giving one month's notice.

On the flexible working complaint, the tribunal held that the respondent complied with ss.80F to 80H ERA 1996. It found that the application was discussed, a written refusal was given, the respondent stated statutory grounds for refusal, and an appeal was offered. For the constructive dismissal complaint, the tribunal found there had been no refusal to speak to the claimant about returning on part-time hours because there were at least two meetings on the subject, and it held that the refusal of the flexible working request was not a breach of contract. It concluded that there was no fundamental breach entitling the claimant to resign, and that she resigned because she could not work full time.

The direct sex discrimination complaint failed because the claimant's actual comparators were all women, so they could not support a claim of less favourable treatment compared with a male comparator. The pregnancy and maternity complaint also failed: the tribunal found that the respondent did not refuse to speak to her or dismiss her because of pregnancy or maternity, and that by the relevant time she was on holiday rather than within the protected period. The tribunal also recorded that the respondent's reason was the impracticability of the requested arrangement, not pregnancy.

The race discrimination complaint failed because, although the claimant was Polish and her comparators were not, their circumstances were materially different. The comparators worked fixed days and fixed hours, while the claimant sought variable days and hours with only the preceding week's notice. The tribunal accepted the respondent's explanation that such an arrangement would be unworkable for the business. The indirect sex discrimination complaint also failed. The tribunal did not find a proved PCP requiring employees to work contracted hours or full time; alternatively, it held that maintaining the business and customer service was a legitimate aim and that refusing the claimant's proposed variable arrangement was proportionate.